Case Information
*2 Interim Decision #1676 MATTER of VOSGANIAN In Deportation Proceedings A - 10160233
Decided by Board December 21, 1966
Since to show a single scheme of criminal misconduct within the meaning of section 241(a) (4), Immigration.and Nationality Act, requires, at least, the existence of a purpose so definite and limited in scope as to time, place, and manner as to make it reasonably probable that the alien would commit the very crimes for which he stands convicted, it has been established by clear, uneenivocable, and convincing evidence that respondent's convictions on 2 sep- arate occasions in 2 different courts of larceny (7 counts), from 2 different victims in the same locale, and of larceny by check (5 counts), involving a third victim in a different locale, committed over a period of approximately 1 month, did not arise out of a single scheme of criminal misconduct where respondent, by his own testimony, indicated that initially the purpose of his action, motivated by the needs of the moment, was to get money to gamble and win money to pay his debts but losses increased his debts, credi- tors, and pressures, broadened the scope of his activities, and he engaged in a frantic series of activities until apprehended. CHARGE :
Order: Act of 1952--Section 241(a) (4) [8 U.S.C. 1251 (a) (4)3—Convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. ON &mew or B.Esronorarr (cid:9) ON BEHALF OF Myron: I. Miles Pollack, Esquire (cid:9) R. A. Vielkaber 850 Broadway (cid:9) Appellate Trial Attorney New York City 10013
This is an. appeal from the decision of the special inquiry officer, finding respondent deportable as charged, holding him to be statu- torily ineligible for voluntary departure, and ordering his deporta- tion to England, the country of designation, with an alternative order of deportation to Lebanon.
The Government introduced, in support of the allegations in the order to show cause, a record of conviction of the respondent, in the Superior Court for Middlesex County, Massachusetts, dated February 11, 1964, showing that respondent had pleaded guilty to an indict- *3 ment charging seven counts of larceny from two different victims, the said acts taking place in Medford, Massachusetts, on November 12, 18, 20, 21 and 23, 1963. Respondent was sentenced to the House of Cor- rection for one year, but sentence was suspended for a period of three years upon condition that respondent make restitution in the amount of $1,155 (Ex. 2).
The Government also introduced, as Exhibit 3, a second record of conviction showing that on March 28, 1964, on his plea of guilty, respondent was convicted in the District Court of Peabody, County of Essex, Massachusetts, of five counts of larceny by check, each check being in the amount of $50.00, the checks being made on December 11, 13, 14 and 15, 1963, all being cashed in the same department store in Peabody, Massachusetts (which was not one of the two victims involved in the first set of convictions). Respondent was sentenced to one year in the House of Correction, but sentence was suspended until January 3, 1965 on condition that restitution be made. Respondent concedes that all of the factual allegations in the order to show cause are true, and concedes that the above records of convic- tion relate to him and that he was guilty of the crimes charged therein. He contests deportability, however, alleging that the crimes referred to all arose out of a single scheme of criminal misconduct.
Counsel seeks on appeal to raise the additional issue of whether the
crimes involved moral turpitude, mentioning the statutes of several
states covering the passing of worthless checks, and referring to a
decision of the Board
(Matter of Stasinski,
Int. Dec. No. 1476, decided
May 26, 1965)
in
which a conviction for
issuing
or passing a. worthless
check, under a specific section of Wisconsin law, was held not to be a
crime involving moral turpitude. The respondent here was charged
with, and convicted of,
larceny
and
larceny by check.
The courts have
long since settled the question that larceny is a crime involving moral
turpitude, cf.
Tillinghast v. Edmead,
The Government has the burden of proving deportability by clear,
unequivocal, and convincing evidence
(cf. Woodby
and
Sherman cases,
35 LW. 4053, decided by U.S. Supreme Court, December 12, 1966),
and under the section of law involved here, it must show not only the
conviction of two crimes involving moral turpitude but also that they
did not arise out of a single scheme of criminal misconduct,
Wood v.
Boy,
half, thirteen other sets of court. records (Exs. 6 - 17), which establish
that respondent also pleaded guilty to 31 more counts of larceny, 4
more counts of larceny by check and 1 count of attempt to steal. As the
special inquiry officer points out, most of these could have served as
well for the purposes of section 241(a) (4) as the two sets of convictions
specified in the order to show cause (except for the 14 counts making
up Exhibit 5, where the cases were placed "on file" by the court, a dis-
position held not to have the force of a conviction for deportation pur-
poses,
Pino v. Landon,
Respondent testified on his own behalf, explaining his situation thus : In 1968, when he was residing and working in Massachusetts, he began to gamble at races on nearby tracks, placing his bets either in person at the tracks or with bookmakers off-track. He was apparently completely unsuccessful and lost more money than he could afford to lose, especially since he was already in debt. He felt that the way to recoup his losses was to continue his betting in the hope that his luck would change. He borrowed money from banks, loan companies and "loan sharks", and lost it all. In the first week of November, 1963, he lost his job. He then had outstanding, and overdue, debts of close to 28,000. He testified that he was being harassed by the banks and loan companies and threatened with physical harm by the "loan sharks" for not making payment. He decided that the only solution to his diffi- culties was to issue and cash checks on accounts in which he had insuffi- cient funds, so that he could obtain the money he needed..
Respondent opened a checking account in one bank and proceeded to write and cash checks far in excess of the token amount he had deposited to open the account. By the end of the week, the checks started "bouncing", and he had already been threatened with criminal prosecution unless he made prompt restitution, by the manager of one of the stores he had victimized. His need for money became, if any- thing, even more pressing, and he knew that the bank, aware of his *5 activities, would not issue additional checks to him, so he proceeded to open two new checking accounts in two separate banks. He con- tinued writing and cashing checks, passing a total of 50 or more before he was apprehended (there were a few on which charges were not brought against him). It appears, from respondent's testimony, that he had no organized or overall idea of what he intended to do when he started on this course of conduct, other than to get money, and that his actions were dictated by the needs of the moment: I had a big burden of debts and I didn't know what to do, how to pay and I was threatened and so I opened a little checking account and then from a department store—a large department store, I wrote a check. I bought little articles from the check and I tried to pay some of it to the shylocks that would threaten me, so I gave them part of it and part of it T gambled with but I lost and then during this period of six weeks, I was writing checks trying to get some money to pay back and I beard the police were looking for me and then I was going to be thrown in jail, so I wrote the checks trying to get back to make money and pay the banks which I didn't want to put back $150 to the bank, Maiden Trust Company, but I just couldn't put it back because I was losing the money and then they were looking for me and then the skylocks threatened me. So I gave them part of it and I went back and wrote more checks until December 21et. (Tr. p. 14)
The scope of the operation changed as it continued and his losses continued, and broadened to include the repayment of the monies he had obtained by the checkwriting, provided his luck changed : I can gamble and make money if I can by getting lucky, and pay the whole thing that I wrote checks, including the bank and the department stores will say, well, he paid us, so that they don't have to prosecute me and if they do, at least I'll have the money to pay, because I have never been in trouble. I didn't even know the procedure of law how they excuse a person by paying or not paying, so I thought that I could pay them all and try to start all over again— you know—a better life because I was just so much peeved and they were after me and I said if I stop now, this minute, I will lose this much money, what am I going to do, so I wrote some more checks so, let me get lucky and maybe I can pay the rest that I wanted prior to my last check I wrote, to pay them all, the whole thing back, including the gambling places. (Tr. p. 29). Is this, the writing of 48 worthless checks, on three different banks, the cashing of them in seventeen separate stores in eight different towns, in the period from November 7,1963 to December 26,1963, with use of the proceeds to make partial repayment on loans from "loan sharks", make token deposits in the newly opened bank accounts and make further bets on the races, a "single scheme of criminal misconduct" f
The wording of the statute itself and its legislative history are of no assistance in determining the meaning of this phrase, which saves from deportation certain persons who have been convicted of more than *6 one crime involving moral turpitude. The Board initially interpreted this exception to refer to acts which, although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, as, for example, the possession and passing of a counterfeit bill, or an assault with a deadly weapon after breaking and entering a premises to commit larceny (see Matter of D — , 5 I. & N. Dec. 728; Matter of Z— 6 I. &I N. Dec. 167; Matter of 1—, 6 I. & N. Dec. 882; Matter o f :M—,71.& N. Dec. 144) . We believe that this interpreta- tion effectuates the basic purpose of the exception, which is contained in an overall provision aimed at simplifying the deportation of genuine multiple offenders. However, the wording has been variously inter- preted by the courts of the several circuits and the matter has never been ruled on by the Supreme Court. The special inquiry officer , in his opinion, has carefully considered and discussed the reported deci- sions on this issue and their applicability to the instant case.
The deportation proceedings herein arise in the Second Circuit.
On the District Court level, there is the case of
Jeronimo v. Murff,
There is question, however, as to whether
Jeronimo
and
Barrese
are controlling in the Second Circuit. In a later case,
Costello v. Im-
migration. and Naturalization Service,
Respondent bases his claim to the "single scheme" exemption upon the fact that for six -weeks he "pursued a course of criminal miscon- duct, involving numerous successive, separate crimes, consummated at different times but in the same manner * * *, by the use of the same fraudulent devices * * *" for the sole purpose of paying off his debts. Costello rules out, as persuasive of a single scheme, the mere repetition over a period of time of the same criminal act on separate oc- casions. The special inquiry officer has given his attention to the weight to be accorded the claim of a single motivating purpose under- lying all of the criminal acts. He points out that the object of most crimes is financial gain. He states:
Obviously, the existence of such a purpose is too broad a criterion with which to evaluate the existence of a single scheme. The least that would appear to be required is the existence of a purpose so definite and limited in scope, both as to amount and as to time, place and manner of execution, as to make it rea- sonably probable that the very crimes for which respondent stands convicted would be the ones which he would commit. (Opinion, p. 11). We believe this to be a fair and valid standard to apply, one which can encompass the situation presented in Wood y. Hoy, supra, and pre- vent, at the same time, a blanket extension of the exception contained in the statute to any person who has the presence of mind to testify that he had a preconceived and single purpose in committing several criminal acts. Respondent's activity, by his own testimony, does not meet the stand-
ard of definiteness and limited scope. His purpose initially was to get money so that he could gamble and win money to pay back his debts,. but as his activities proceeded, his debts and creditors increased, the
pressures on him changed, and he engaged in a frantic sequence of robberies from Peter to pay Paul. His purpose was not being achieved but he continued hopeful, and changed locales and victims, knowing the police were after him but willing to lengthen his criminal record by each successive act until he should be stopped by being apprehended by the police. There is no evidence that he used any of the money so obtained for the alleged purpose for which he was stealing it, or that any of his debts were paid before the arrival of his mother from Leb- anon, with money to make restitution. We cannot give serious con- sideration to the contention, on appeal, that because of "poor planning or unsatisfactory results" the unskilled criminal should be given the dispensation of "flexibility of action" to permit him to carry out his purpose , and still be considered to be within a single scheme (cf. brief, PP. 6-7). We hold that deportability has been established, by the appropriate weight of evidence, that the special inquiry officer was correct in find- ing respondent statutorily ineligible both for suspension of deporta- tion and voluntary departure, and that the appeal must therefore be dismissed. ORDER: It is ordered that the appeal herein be and the same is hereby dismissed.